Dear Department for Culture, Media and Sport,
The Department’s consultation ended on 10 January 2017. It included the following question:

Question 1: Which of the following statements do you agree with:
(a) Government should not commence any of section 40 now, but keep it under review and on the statute book;
(b) Government should fully commence section 40 now;
(c) Government should ask Parliament to repeal all of section 40 now;
(d) If Government does not fully commence section 40 now, Government should partially commence section 40, and keep under review those elements that apply to publishers outside a recognised regulator;
(e) If Government does not fully commence section 40 now, Government should partially commence section 40, and ask Parliament to repeal those elements that apply to publishers outside a recognised regulator.

1 Can the respondents to this question be placed in various categories?
2 If ‘Yes’ what are the categories? (e.g. individual citizens, news publishers)
3 How many of each category agreed with each of the above statements?
4 If 2=‘No’ how many respondents in total agreed with each of the above statements?

Thank you for your email which is now being dealt with by the Freedom of
Information Team at the Department for Culture, Media and Sport.
You will receive a response to your information request within 20 working
days of receipt.

no-reply@dcms.ecase.co.uk on behalf of Correspondence Team,
Department for Culture, Media and Sport
23 June 2017

FOI2017/00579

[FOI #409648 email]

Mr Christopher Whitmey

Dear Mr Whitmey,

Thank you for your information request dated 31st May in which you asked:

Question 1: Which of the following statements do you agree with:

(a) Government should not commence any of section 40 now, but keep it
under review and on the statute book;

(b) Government should fully commence section 40 now;

(c) Government should ask Parliament to repeal all of section 40 now;

(d) If Government does not fully commence section 40 now, Government
should partially commence section 40, and keep under review those elements
that apply to publishers outside a recognised regulator;

(e) If Government does not fully commence section 40 now, Government
should partially commence section 40, and ask Parliament to repeal those
elements that apply to publishers outside a recognised regulator.

1 Can the respondents to this question be placed in various categories?

2 If Yes what are the categories? (e.g. individual citizens, news
publishers)

3 How many of each category agreed with each of the above statements?

4 If 2= No how many respondents in total agreed with each of the above
statements?

We have dealt with your request under the Freedom of Information Act 2000
(the Act). We can confirm that the Department holds this information.
However, although the consultation period has finished, the results of the
consultation are still being used to inform the Government's decision
making process regarding this issue. Therefore, we have determined that
this information is exempt from disclosure under section 35 (a)
(formulation of government policy) of the Act.

Section 35 is a 'qualified exemption' and requires us to carry out a
public interest test to consider whether the balance of interest lies in
releasing or withholding the information. In considering this, we have
paid particular regard to the arguments in favour of disclosure, including
that disclosure may be of benefit because:

* greater transparency makes government more accountable to the
electorate and increases trust;

* the desirability of citizens being confident that decisions are taken
on the basis of the best available information;

* knowledge that the arguments relating to a debate will be released
will in fact improve the quality of those arguments. Far from
inhibiting the frank provision of advice, there might be circumstances
where the prospect of disclosure would enhance the quality of advice.

However, while acknowledging these benefits we consider that on this
occasion the arguments for upholding the exemption and withholding the
information outweigh those in favour of disclosure. In particular,
consideration of the following factors has led us to the conclusion that
the public interest requires the exemption in section 35 to be upheld
because:

* Ministers and their officials need space in which to develop their
thinking and explore different options in communications and
discussions. We are continuing to use the information at issue here to
inform the development of our ongoing policy;

* Ministers and their officials need to be able to think through all the
implications of different options. In particular, they need to be able
to undertake rigorous and candid assessments of the risks to
particular programmes and projects;

As is customary in our replies, I would like to explain that if you are
dissatisfied with any aspect of our response to your request for
information and/or wish to appeal against information being withheld from
you please send full details within two calendar months of the date of
this email to: [email address]

You have the right to ask the Information Commissioner (ICO) to
investigate any aspect of your complaint. Please note that the ICO is
likely to expect internal complaints procedures to have been exhausted
before beginning an investigation.

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Department for Culture, Media and Sport's handling of my FOI request 'Results: Consultation on the Leveson Inquiry and its implementation'.

Thank you for email of 23 June in response to my request of 31 May. Thank you for replying well within the 20 working days. I note you have refused my request as the ‘information is exempt from disclosure under section 35(a) (formulation of government policy) of the Act’. I presume that 35(a) should read 35(1)(a).

On that presumption I ask for an internal review because:

(A) on the true construction and meaning of the Crime and Courts Act 2013 sections 34-42 the implementation of section 40 is not a question of government policy; or in the alternative

(B) the government has concluded its considerations and decided its policy; or in the alternative

(C) if the government is still considering its policy then the release of the factual information sought would in no way affect the formulation of such policy as it is merely a statistical analysis and the public interest prevails.

The submissions for each of these alternative grounds is set out below my signature.

(A) On the true construction and meaning of the Crime and Courts Act 2013 sections 34-42 the implementation of section 40 is not a question of government policy.

The Crime and Courts Act 2013 (‘CCA’) sections 34-42 inclusive are headed “Publishers of news-related material: damages and costs” and form a complete entity for implementation as a whole and not a question of policy.

The CCA Explanatory Note sets out Parliament’s purpose and intent of sections 34-42 (emphasis *...* added):
Sections 34 to 42: Publishers of news-related material: damages and costs
56. On 29th November 2012 the Report of An Inquiry into the Culture, Practices and Ethics of the Press was presented to Parliament (HC 780) (“the Leveson Report”). In the report, the Rt. Hon. Lord Justice Leveson makes a range of recommendations to reform the regulatory framework for the press, creating a new framework for press regulation, with the principle of industry self-regulation at its heart. The new framework proposed is for a system of voluntary self-regulation, overseen by a recognition body established by Royal Charter and strengthened by a series of incentives for members of the press in the application of costs and exemplary damages, encouraging them to join a recognised regulator. *Sections 34 to 42 and Schedule 15 set out the new system for exemplary damages and costs*, as well as defining those who meet the definition of a ‘relevant publisher’ *to whom the new system* of exemplary damages *will apply*.

CCA section 67 (7) Sections 34 to 39 come into force at the end of the period of one year beginning with the day on which a body is established by Royal Charter with the purpose of carrying on activities relating to the recognition of independent regulators of relevant publishers (as defined by section 41).

Such a body, the Press Recognition Panel (‘PRP’), was formed on 3rd November 2014. To comply with the Interpretation Act section 2(1) and CCA section 67(7) on 4th November 2015 The Crime and Courts Act 2013 (Commencement No. 14) Order 2015, signed on 27th October 2015 by Edward Faulks, Minister of State, Ministry of Justice, brought into force s.41 with Schedule 15 and s.42, as they related to sections 34-39.

Interpretation Act 1978 section 12 (emphasis *...* added): Statutory powers and duties
12 Continuity of powers and duties.
(1) Where an Act confers a power or imposes a duty it is implied, unless the contrary intention appears, that the power may be exercised, or the duty is to be performed, from time to time *as occasion requires*.

CCA Commencement No 14 was a statutory duty to be performed to comply with the true meaning and construction and Parliament’s purpose in enacting CCA sections 34-42 in accordance with section 67(2) occasioned by the formation of PRP and not a matter of discretion or government policy.

CCA section 67(2) Subject as follows, this Act comes into force on such day as the Secretary of State may by order appoint; and different days may be appointed for different purposes and, in the case of Part 4 of Schedule 16 and section 44 so far as relating to that Part of that Schedule, for different areas.

CCA Section 40(6) This section does not apply until such time as a body is first recognised as an approved regulator.

In context of the intent and purpose of CCA sections 34-42 the true construction and meaning in section 40(6) of ‘does not apply until such time as a body is first recognised as an approved regulator’ is no different in substance or intent from ‘applies from such time as a body is first recognised as an approved regulator’.

Interpretation Act 1978 (IA) section 4 Time of commencement.
An Act or provision of an Act comes into force—
(a) where provision is made for it to come into force on a particular day, at the beginning of that day;

“On a particular day” means a day that is specifically described in the relevant Act.

On 25 October 2016 the PRP recognised a body, IMPRESS, as the first approved regulator.
By parity of reasoning with sections 41-42 and IA section 4 a CCA Commencement Order should have been issued as soon as possible after 25 October 2016, ‘on a particular day’, to bring section 40 into force in accordance with section 67(2). This is a statutory necessity occasioned by the formation of PRP and in accordance with the IA section 2(1) to comply with the true meaning and construction of the CCA and not a matter of discretion and/or government policy. The failure to do so frustrates the true meaning and construction of the CCA and frustrates the will of Parliament.

Dicta in Regina v. Secretary Of State For The Home Department, Ex Parte Fire Brigades Union And Others [1995] 2 AC 513 (‘FBU’) http://www.bailii.org/uk/cases/UKHL/1995... support the proposition that on the true meaning and construction of the CCA ‘Publishers of news-related material: damages and costs’ section 40 should have been brought into force, as have sections 41-42, as the particular day prescribed in the CCA section 40(6) has come to pass.

In FBU the House of Lords: Held, (1) dismissing the appeal (Lord Keith of Kinkel and Lord Mustill dissenting), that section 171(1) of the Criminal Justice Act 1988 imposed a continuing obligation on the Secretary of State to consider whether to bring the statutory scheme in sections 108 to 117 into force; that he could not lawfully bind himself not to exercise the discretion conferred on him; that the tariff scheme was inconsistent with the statutory scheme; and that, accordingly, the Secretary of State's decision not to bring sections 108 to 117 into force and to introduce the tariff scheme in their place had been unlawful (post, pp. 551c-552b, 554f-g, 570h-571a, d-e, 572c, 573c-e, 575e-h, 578e-f).

Section 171(1) was a common form section like CCA section 67(2).

“Therefore although the case before your Lordships turns on the construction of section 171(1) it cannot be construed in isolation. Such a widely used statutory formula must have the same effect wherever Parliament employs it. The words of section 171(1) are consistent only with the Secretary of State having some discretion: indeed even the applicants concede that he has a discretion. What is it then which suggests that there will come a time when that discretion is exhausted and that, whatever the change of circumstances since the sections in question were passed by the Queen in Parliament, the Secretary of State becomes bound to bring the sections into force? I can see nothing in the Act which justifies such an implied restriction on the discretion. … Where Parliament intends to impose a duty on a minister to bring legislation into force under a similar formula, it expressly states the time-limit within which such power is to be exercised: see section 5(2) of the Domestic Violence and Matrimonial Proceedings Act 1976.” per Lord Brown-Wilkinson at 550 C-D and F.

“It is to my mind beyond doubt that in every one of these instances "may" invokes a choice and "shall" an order. Looking next at the immediate context of the word "may" in section 171(1), we find that, only a few words before, "shall" is used in its natural sense, which makes it unlikely that the draftsman immediately afterwards chose "may" to convey the same meaning” per Lord Mustill at 563C-D.

“The continued existence of section 171(1) means that, even if there is no present duty to appoint a day, there is a continuing duty, which will subsist until either a day is appointed or the relevant provisions are repealed, to address in a rational manner the question whether the power created by section 171(1) should be exercised. This continuing duty overshadows the exercise by the Secretary of State of his powers under the Royal Prerogative.” per Lord Mustill at 565C.

“It is, after all, the normal function of the executive to carry out the laws which Parliament has passed, just as it is the normal function of the judiciary to say what those laws mean.” per Lord Lloyd of Berwick at 568H.

“Parliament could not tell how long it would take to make the necessary regulations. So instead of providing that sections 108 to 117 should come into force after six months or a year, or other finite period, it left the date blank. It was for the Home Secretary to fill in the blank when the necessary administrative arrangements had been put in place.” per Lloyd of Berwick at 570F

“They [sections 108 to 117] contain a statement of Parliamentary intention, even though they create no enforceable rights. Approaching the matter in that way, I would read section 171 as providing that sections 108 to 117 *shall* come into force *when* the Home Secretary chooses, and not that they *may* come into force *if* he chooses. In other words, section 171 confers a power to say when, but not whether.” per Lloyd of Berwick at 570H – 571A (emphasis *...* as in original)

“Ministers must be taken at their word. If they say that they will not implement the statutory scheme, they are repudiating the power conferred on them by Parliament in the clearest possible terms. It is one thing to delay bringing the relevant provisions into force. It is quite another to abdicate or relinquish the power altogether. Nor is that all. The Government's intentions may be judged by their deeds as well as their words. The introduction of the tariff scheme, which is to be put on a statutory basis as soon as it has had time to settle down, is plainly inconsistent with a continuing power under section 171 to bring the statutory scheme into force.” per Lloyd of Berwick at 572D

“The inescapable conclusion is that the Home Secretary has effectually ‘written off' the statutory scheme and that once the tariff scheme has been introduced, there would be no realistic prospect of him being able to keep the exercise of the commencement day power under review. By setting up the tariff scheme the minister has set his face in a different direction. He has struck out down a different route and thereby disabled himself from properly discharging his statutory duty in the way Parliament intended. For this reason the new scheme is outside the powers presently vested in him. I would dismiss both the appeal and the cross-appeal.” per Lord Nicholls of Birkenhead at 578F

In the Criminal Justice Act 1988 there was no indication within the Act when sections 108 to 117 should come into force. CCA section 40(6) in its true meaning and construction clearly states that section 40 should have come into force the day Impress was recognised as an approved regulator. Successive Ministers have unlawfully ‘struck out down a different route’ and treated it as a matter of policy and not ‘properly discharging his statutory duty in the way Parliament intended’.

(B) The government has concluded its considerations and decided its policy.

On the 18 May 2017 (13 days before the FOIA request on 31 May 2017) the Government published its General Election manifesto and categorically stated, “We will repeal Section 40 of the Crime and Courts Act 2014, which, if enacted, would force media organisations to become members of a flawed regulatory system or risk having to pay the legal costs of both sides in libel and privacy cases, even if they win.”

The Second Annual IPSO Lecture Thursday 6th July, 2017, Church House, London was delivered by Rt Hon John Whittingdale OBE MP (former Secretary of State DCMS). The lecturer categorically stated, (emphasis *...* added) “[E]lected on a manifesto which *made it quite plain that a decision had been taken by the then Secretary of State* not to proceed with the establishment of the second part of the Leveson inquiry, and *that section 40, after having been subject to consultation, for which we still await the publication, but the decision had been taken that it should be repealed.*”

By the election manifesto and the IPSO lecture the department is estopped from claiming that government policy concerning section 40 is still being formulated.

(C) If the government is still considering its policy then the release of the factual information sought would in no way affect the formulation of such policy as it is merely a statistical analysis and the public interest prevails.

The information requested is statistical information. It is merely a factual numerical analysis of the various categories of respondents to the consultation. Section 35(4) specifically provides that there is particular public interest in disclosing background factual information. See ICO Guidance Government policy (section 35) page 25 para. 91.

The factual numerical information requested does not require a safe space for evaluation nor would its release have any chilling effect on any policy discussion still continuing.
[ends]

Thank you for your email which is now being dealt with by the Freedom of
Information Team at the Department for Culture, Media and Sport.
You will receive a response to your information request within 20 working
days of receipt.

Dear Department for Culture, Media and Sport,
Further to my Internal Review request yesterday, 11 July, I regret to say I have noticed a typing error.
I wrote "To comply with the Interpretation Act section 2(1) and CCA section 67(7) ".
It should be "To comply with the Interpretation Act section 12(1) and CCA section 67(7)". Section 12(1) not section 2.1 of the Interpretation Act.
Yours apologetically,

Dear Department for Culture, Media and Sport,
Ref: FOI2017/00579
On the 11 July last you wrote, "You will receive a response to your information request within 20 working
days of receipt. " in response to my request for an internal review. I have heard nothing since. Should I not have the Internal Review by 5.00pm Friday 18 August I will refer the matter to the Information Commissioner.
Yours faithfully,

Thank you for your email which is now being dealt with by the Freedom of
Information Team at the Department for Culture, Media and Sport.
You will receive a response to your information request within 20 working
days of receipt.

no-reply@dcms.ecase.co.uk on behalf of Correspondence Team,
Department for Culture, Media and Sport
18 August 2017

FOI2017/01833 (Internal Review of FOI2017/00579)

Christopher Whitmey

[FOI #409648 email]

Dear Mr Whitmey,

Thank you for your email of 11 July, in which you requested an internal
review of your information request of 31 May 2017. Your latest request was
as follows:

I am writing to request an internal review of Department for Culture,
Media and Sport's handling of my FOI request 'Results: Consultation on the
Leveson Inquiry and its implementation'.

Thank you for email of 23 June in response to my request of 31 May. Thank
you for replying well within the 20 working days. I note you have refused
my request as the information is exempt from disclosure under section
35(a) (formulation of government policy) of the Act . I presume that 35(a)
should read 35(1)(a).

On that presumption I ask for an internal review because:

(A) on the true construction and meaning of the Crime and Courts Act 2013
sections 34-42 the implementation of section 40 is not a question of
government policy; or in the alternative

(B) the government has concluded its considerations and decided its
policy; or in the alternative

(C) if the government is still considering its policy then the release of
the factual information sought would in no way affect the formulation of
such policy as it is merely a statistical analysis and the public interest
prevails.

I apologise for the delay in your receiving a response. I have dealt with
your request under the Freedom of Information Act 2000 (the Act). I have
re-examined the handling and scope of your original request and I can
confirm that the department does hold information in scope of your
request. However, we maintain that this information is exempt from
disclosure under section 35.1 (a) (formulation of government policy) of
the Act.

Section 35 is a 'qualified exemption' and requires us to carry out a
public interest test to consider whether the balance of interest lies in
releasing or withholding the information. In this case our view is that
there is not sufficient public interest in releasing this information at
this point in time. Releasing this information now would jeopardise the
"safe space" which is needed for the effective development of policy; the
debate around the implementation of section 40 of the Crime and Courts Act
2013 is still a live policy and Ministers are still considering the
results of the consultation. If this information is released in isolation
it may be taken out of context, particularly in light of the high media
interest in the issues concerned. There is a risk that disclosure at this
stage could jeopardise the "safe space" Ministers require for policy
development

A government response to the consultation will be published after
Ministers have reached their decision on next steps regarding section 40
of the Crime and Courts Act 2013. This consultation related to complex
policy matters and the responses received covered a range of issues. As
such, the public interest lies in ensuring the responses are analysed
properly and Ministers have considered the responses fully, before this
information is made public.

We therefore consider that the public interest in withholding this
information outweighs the public interest in releasing it at this time in
order to protect the integrity of the policy-making process which is not
yet complete.

You have the right to ask the Information Commissioner (ICO) to
investigate any aspect of your complaint. Please note that the ICO is
likely to expect internal complaints procedures to have been exhausted
before beginning an investigation.

Ref: FOI2017/01833 (Internal Review of FOI2017/00579)
Dear Ms Batchelor, (Apologies if incorrect. 'Mr' has it easy !)
Thank you for carrying out the internal review and apology for the delay, which is accepted. I note your statement that 'the implementation of section 40 of the Crime and Courts Act 2013 is still a live policy and Ministers are still considering the results of the consultation.'. This seems at odds with the clear wording of the government's election manifesto.
I will be referring my request to the ICO.
Yours faithfully,